Opinion 14-140

October 20, 2014

PERSONAL AND CONFIDENTIAL

Dear   :

         This responds to your inquiry (14-140) asking about your reporting obligations under the Rules Governing Judicial Conduct after learning from your court clerks that they overheard your co-judge engaging in ex parte, off-the-record communications with a prosecutor and his/her witness, advising them how to present certain evidence at the next phase of the case.

         A judge must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, if a judge receives information indicating a substantial likelihood that another judge has committed a substantial violation of the Rules of Judicial Conduct, the judge must take appropriate action (see 22 NYCRR 100.3[D][1]). However, a judge is under no duty to investigate whether allegations of misconduct are true.

         The Committee has generally advised that a judge him/herself must determine whether there is a substantial likelihood that another judge has committed a substantial violation of the Rules of Judicial Conduct because the judge is in the best position to evaluate and assess all relevant, known circumstances, including the reliability of the information known to the judge. This is particularly so where the information is hearsay, as is the case here. And, if the judge determines that a substantial violation of the Rules has occurred, the judge must take “appropriate action”(see 22 NYCRR 100.3[D][1]), as indicated by all the surrounding circumstances known to the judge at the time. Thus, if the conduct in question is so serious so as to call into question a judge’s fitness to continue in office, the judge must report the conduct to the Commission on Judicial Conduct (see Opinion 10-85). But, if the judge concludes that the other judge’s conduct, though a substantial violation, does not reach that level of egregiousness, the judge has the discretion to take some lesser action. For example, in this inquiry you state the information you have is oral hearsay – raising the question of its accuracy and reliability - and the judge who allegedly engaged in the conduct is a relative newcomer to the bench.

         Thus, for example, you may discuss the situation with the other judge and counsel him/her on the ethics of the claimed inappropriate conduct and then decide what if anything else should be done depending on the judge’s response to your advice. On the other hand, if you conclude the other judge’s conduct is insubstantial or a mere technical violation of the Rules Governing Judicial Conduct, you need not take any action at all.

         Enclosed, for your convenience, are Opinions 13-69; 13-71; 10-85; 09-190; and 08-08 which address this issue directly or by analogy.

                                       Very truly yours,

George D. Marlow, Assoc. Justice

Appellate Division, First Dept. (Ret.)

Committee Chair

Encls.